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Sunday, 27 September 2015

This Kat was quite content when all the news items concerning Ella the selfie-taking black macaque had gone quiet [on which see earlier Katpost here]. For one thing, he thinks that even relatively plain cats are prettier than any primates. For another, he was getting fed up with people asking him if it was true that a monkey could own any copyright. A further cloud has now appeared on this Kat's horizon in the form of news that a campaign has apparently been initiated to vest copyright in an animal other than a cat as an author. In this guest post solicitor and Katfriend Lucy Harrold (Keystone Law) takes up the story:

Copyright Law: A Load of Monkey Business?
Is the selfie on track to change the face of intellectual property? In 2011 British wildlife photographer David Slater was on the island of Sulawesi, following a troop of macaques. He set up his camera and waited. Suddenly, a cheeky monkey grabbed the camera, smiled into the lens and pressed a button. The photographs that followed went on to become internationally known – featuring in a wildlife book by Mr Slater.

However, animal rights organisation People for the Ethical Treatment of Animals (PETA) has taken legal action in the United States on the monkey’s behalf (naming it Naruto), claiming that the animal owns the copyright in the successful photographs and should therefore reap the benefits financially. Slater contends that he, in fact, was the brains behind the set of photographs of the monkey he named Ella. “A monkey only pressed a button of a camera set up on a tripod,” he argues. “A tripod I positioned and held throughout …”
Meanwhile PETA’s argument is that it is not the person who owns the camera that owns the rights but the being (in this case, a monkey) who actually took the photograph. The case will be decided by the US federal court in California but it is interesting to consider how the facts would be treated in the UK/Europe.
Examining the Copyright Designs and Patents Act 1988 (“CDPA”), animals cannot own copyright. Copyright is a right that potentially subsists in an artistic work such as a photograph (section 1(1)(a), CDPA) but only if the requirements for qualification for protection are met (section 1(3)). The author of a copyright work is “the person who creates it” (section 9). The author of the work is then the first owner of that work (section 11(1)). But, for the work to qualify for protection, the author has to be a British citizen .., individual domiciled in the UK (or country to which the Act extends) or a body incorporated under the laws of the UK (or a country to which the Act extends) (sections 153 and 154). The monkey is neither an individual nor a body corporate so on similar facts in the UK, its case would fall at the first hurdle.
Let’s put that problem to one side and consider the substantiality, originality and authorship of the selfies as artistic works (section 4(1)(a) of the CDPA).
The threshold for copyright originality requires the work to be the “author’s own intellectual creation” (Infopaq[2009]). Perhaps the monkey-taken selfies do not cross the thresholds of substantiality and originality? However, we know both are low thresholds and, for example, a portrait can be a copyright work provided the photographer has made certain free and creative choices (e.g. the angle, light and scene) and stamped his or her personal touch on the work.

Assuming the substantiality and originality thresholds are crossed, we turn next to the authorship of the selfies. Whose intellectual creation were they? The monkey’s or the photographer’s? The photographer set up the camera on the tripod in a particular place, thus choosing light and scene. The monkey grabbed the camera and pressed the button to take the photos, arguably choosing angle and scene. Perhaps our answer depends upon whether the photographer intended the monkey to press the button or not? If he didn’t, surely the selfie was entirely the monkey’s creation? If the photographer did intend the monkey to press the button, perhaps the selfie was the photographer’s intellectual creation?

There could be a third argument- i.e. that they both had the same idea, contributed significant relevant originality (Brighton v Jones [2004]) and, in fact, the selfies are works of joint authorship; there being collaboration present and no need for an intention to create a joint work (Beckingham v Hodgens [2002]). Or is the correct conclusion simply that the monkey had no intellectual awareness that it was creating a selfie and cannot therefore be capable of intellectual creation?
Even if we conclude that the selfie was the monkey’s intellectual creation it still cannot be a copyright work because it does not meet the qualifying criteria of the CDPA. The correct conclusion then must be that there is no copyright work so no one can own it and anyone can reproduce it. The photographs form part of the public domain.

Magic perhaps, butnever managed a selfie

There is a more fundamental legal issue here, however, does or should the monkey have legal standing to own property? The answer turns on the principle of ‘legal personality’. As US Professor of Law at the University of Southern California, Christopher Stone points out [in “Should Trees have standing --toward legal rights
for natural objects” 45 S. Cal. Law Rev. 450 (1972)], the rights of children were non-existent under Roman law and they have gradually acquired rights as have prisoners, women, the insane, foetuses and indigenous people. He further points out that inanimate right-holders have now been created such as corporations. He proposes that legal rights should be granted to “forests, oceans, rivers and other so-called natural objects in the environment -- indeed to the natural environment as a whole.”Similar arguments have been made on behalf of animals. Animals are recognised as sentient beings in the Protocol on Protection and Welfare of Animals annexed to the Treaty of the European Community that aims to “ensure improved protection and respect of the welfare of animals as sentient beings” but this is a long way from granting them legal personality. Australian academic Deborah Cao thinks the law should go further and argues: “Animals …now … should have a place not only in law but also legal philosophy as subjects of law.” [Int
J Semiot Law (2011) 24:255–257].

Fido: six months in solitaryfor selling fake watches ...

Conferring legal personality to animals gives rise to a number of problematic issues. For example, should animals also have criminal responsibility? As regards ownership of property, there are obvious problems with how that ownership can be balanced with third party interests; how to decide which charity or other body would manage the animal’s ownership on its behalf and in what way? Perhaps these problems can be overcome if one considers how common interests can be represented before the Courts by unincorporated associations, how children’s property can be managed by trusts or how a concept of guardianship might be deployed.
The case of Naruto or Ella challenges our human and economic-based concepts of artistic creation, property and ownership. As Professor Stone points out in the context of the environment, “Throughout legal history, each successive extension of rights to some new entity has been, theretofore, a bit unthinkable”. There appears little public inclination, however, to think the unthinkable. Current law and Mr Slater’s obvious track record of artistic creativity may lend weight to his arguments but the smart act on his part would be to give some of any profits from the photos to a monkey charity or gift them to the public domain …

Civil rights for animals hereHuman-animal marriage here and hereAnimals who never wrote their own songs herePlanet of the Apes hereMonkees hereThe real Naruto here

9 comments:

A stimulating entry, Jeremy, but I respectfully question why you (like so many others) say that the Infopaq test is the applicable test for originality in the UK (let alone the US or Indonesia) (perhaps it is for convenience).

The 2001 Copyright Directive establishes a minimum level of protection, so if we want to protect less original works, we can do so. And we do so, as we do not require films or sound recordings, for example, to be original at all.

I am aware that some academics are attempting to establish the notion of EU pre-emption on US lines, but I think that is without legal basis (except where enacted by explicit constitutional procedures, as in the Database Directive).

Thanks, GR Blog, for your comment regarding Infopaq -- but I didn't say it. The post was authored by Lucy Harrold; I merely facilitated its publication.

For the time being -- and I hope you don't think me being cynical -- it may not matter whether Lucy is right or wrong. I detect that the principle of "communis error facit lex" (or ius, if you prefer) has started to become part of our acquis communautaire.

I represent King Cack (KC) chief of the macaques. Under macaque law, KC is entitled to all property, sylvan and non-sylvan, of his subjects. KC wishes it to be known that he rejects the values of PETA. He is entitled, under lex junglario, to treat animals howsoever he chooses. KC has assigned the copyright in the photo to Donald Trump to help his election campaign. There's a man one can respect and relate to, KC said.

OR you could look back at the previous iterations of this argument and see that you may be missing the issue of what is the famous photo? Is it the picture which the monkey took, or is it a separate work which was the result of Mr Slater's work on the original picture, thus making all this interesting, but ultimately irrelevant to the commercial position?

PETA believes that all animals have feelings and therefore rights. They are not ours to eat, wear, experiment on, use for entertainment or abuse in any other way. The basis for their perspective on animal rights is that animals suffer and have a right to live free from suffering and pain.

By claiming IP Rights for macaques, PETA is going from a very radical position to an even more radical one.

This would not be serious except that there have been judges willing to see apes as having rights.

In 2013, an organisation called the Nonhuman Rights Project filed a lawsuit in the New York Supreme Court on behalf of four chimps kept for research by Stony Brook University. The eventual conclusion of Justice Barbara Jaffe on 27 April 2015 was that they were not to be treated as property, but as legal persons. Not as persons with full human rights, but as persons with a right not to be held in captivity and a right not to be owned.

It is not inconceivable that some left-wing judge could recognize animals as having the right not merely not to be owned, but the right to themselves own property. From here, the jump to allowing ownership of non-physical property, such as intellectual property, is not so large as to be beyond comprehension.

I think that Islamic fundamentalists who decide that they can go around executing and raping people are rejecting Western values in favour of some highly extreme interpretation of their religion.

Let's not provide them with additional artillery for an understanding that Western Liberal Democracies have gone completely nutty.

David J Slater gave a large donation to Selamatkanyaki, in conjunction with a free canvas offer in 2015. Sadly, this group is allied to to Antje Engelhardt, the monkey's next best friend. So Slater was stitched up by the conservation groups he was hoping to help. Alas, this is conservation in a nutshell. On the good side, the photo is now deemed (by no oless than National Geographic) to have singularly saved the entire species of macaque! Somethig Slater wished for since the photo's creation. Kudos to Slater then!

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